Large employers too often try to take advantage
In today’s economy, large employers too often try to take advantage of their employees and deny them legitimate opportunities to take time off to care for themselves or their families. There are two Federal laws meant to ease that burden and provide some protection. The two Federal laws provide certain class of employees with the tools to take care of themselves and their families without losing their jobs. Wallace & Graham Law Firm is well versed in the specifications and requirements of these proactive Federal laws and for your convenience provide this quick review and comparison of these two important federal laws.
As always, if you have questions call the experienced attorneys at Wallace & Graham PA and we can talk about you and your families’ options.
First, the general purpose of the Americans with Disabilities Act (Hereinafter the “ADA”) is to prohibit discrimination against disabled individuals. It only applies to the disabled person and does not extend to the family. However, the Family Medical Leave Act (Hereinafter the “FMLA”) provides leave or time off without pay to employees to help protect their job while away from work for certain protected reasons.
Who Is Eligible For Protection?
ADA Candidates are individuals with a qualifying disability as defined or listed in the statute. Protection of the FMLA extends to employees who have worked for at least 12 months and at least 1250 hours during the previous 12 months at a location within a 75-mile radius of where at least 50 employees work. We know this sounds burdensome or difficult and it admittedly requires some technical application. That is why it is important to give the attorneys at Wallace & Graham a call so we can discuss your rights. Generally most full time employees will be deemed eligible so long as the other conditions are met.
What Conditions Are Covered?
The ADA covers a “Disability” that substantially limits one or more major life activities (or a history or perception of having such a disability) The FMLA requires a “Serious health condition” of the employee or certain close or dependent family members of the employee and also applies to certain military related leave.
What Leave Is Required?
The ADA provides for “Leave” for only the employee and in certain case it may be required if the “Leave” or time off would constitute a “reasonable accommodation” that does not impose undue hardship on the employer. Leave typically must be for a defined period and is unpaid unless the employer pays for other similar leaves. The FMLA provides unpaid leave up to 12 weeks a year for serious health conditions and up to 26 weeks a year for certain military-related leaves. “Leave” may be intermittent and is unpaid but the employer can require or the employee can choose to use accrued paid benefits. This means the employee may be required to use up or exhaust all vacation, sickness, and personal time off first.
What About Benefits?
The ADA does not provide or compel any compensation or sickness benefits. The thrust of the law is that it places a prohibition of discrimination based on disability and is looking for reasonable accommodations that allow the disable to perform their job duties. The FMLA does not provide for benefits and benefits typically do not accrue during leave, but seniority, service time, and vesting continue. The employer may require use or exhaustion of certain paid leaves depending on the specific type of applicable FMLA leave.
What about Reinstatement?
The ADA provides that if leave is required as a reasonable accommodation, the employer generally must keep the employee’s position open during the leave. The FMLA generally requires that the employee must be reinstated to the same or a substantially equivalent position.
What about Light Duty?
The ADA specifically states that employers are not required to remove essential job functions as an accommodation, but if an employer reserves light duty jobs for workers’ compensation purposes, it may have to offer such jobs to disabled individuals. The FMLA prohibits an employer from requiring FMLA-qualifying employees to work light duty. It is meant to provide time away from the job to assist the individual or family member during their time of crisis.
There are some tricks and exceptions to the FMLA and the ADA and in certain situations’ the two can work together to actually extend the 12 week FMLA leave. This is one more compelling reason to contact the experienced lawyers at Wallace & Graham for a complete understanding of you rights can be essential and even crucial.
What Are The Remedies?
Both laws do provide some remedies. The potential penalties with the ADA include compelling lost wages or back pay, compensatory damages, punitive damages, and attorneys’ fees. The FMLA is more limited to simply back pay, reinstatement, benefits, and attorneys’ fees.
This short comparison is meant to simply inform you of potential legal protection should, unfortunately, the situation arise in your life. It is not meant to give legal advice on your specific situation and to protect yourself it is in your best interest to call the experienced attorneys at Wallace & Graham in Salisbury to set up a no obligation consultation in which we can better explain the respective laws that apply to your situation.
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